Summary
The defendant was appointed as a consultant of WPP Italy, WPP 2005. The agreement was terminated by WPP Italy. WPP Italy initiated proceedings in England seeking contractual damages and declaration the defendant was not an employee.
The defendant challenged the English court’s jurisdiction, requesting a stay of the English proceedings. It should be noted that there were parallel proceedings in Italy. The defendant in the English proceedings was a claimant in Italian proceedings which were brought in Italy with regard to the same contractual relationship. The questions of the time of seizure of the two courts had to be considered.
Another important issue was whether Mr Benatti was an employee within the meaning of Articles 18 – 20 of Brussels I.
On 18th July 2006, the English High Court held that the English proceedings should not be stayed as the English court was the first seised. Jurisdiction was established in England on the ground of Article 23 of Brussels I. An appeal was made by the defendant.
On 28 March 2007, the Court of Appeal concluded that Italian court was first seised of the cause of action between WPP 2005 and the defendant. However, the defendant’s appeal was dismissed in relation to WPP Italy and BSH. Lord Justice Toulson held:
“68 [...] I would [...] note that the points raised by WPP 2005 Ltd in relation to the service of the Verona writ were of a highly technical nature. The contents of the Verona writ make it perfectly plain that it was aimed at WPP Italy and the company referred to in the contract as WPP Group Plc. It would be surprising indeed if the WPP Group was not well aware of this before the English writ was amended to add WPP 2005 Ltd as a claimant, and there is no suggestion in the evidence that the group was misled by the language of the writ or suffered any prejudice from the misnomer.
69 As to the absence of the translation, it is noteworthy that about two weeks after service of the Verona writ had been acknowledged by the advice of receipt signed by Vanessa Bryant, an affidavit was sworn by Lisa Mason, a solicitor in the firm then acting for the claimants, in support of an application for default judgment in the present action. She properly drew to the court's attention that, before the claim form was amended to include claims by WPP 2005 Ltd , a claim had been brought by Mr Benatti in Italy against WPP Group Plc. She made the point that this was a different entity, in order to rebut the argument which she foresaw that Mr Benatti was likely to make about the Italian court being the first seised of the relevant issues. However, she made no suggestion that the service had also been ineffective for want of a translation. This point was not raised until some time later.
70 I would hold that the Verona court was first seised of the cause of action between WPP 2005 Ltd and Mr Benatti.
[…]
72 Mr Smouha suggested that it would be very unfortunate to have substantially identical claims proceeding in different jurisdictions. I agree, but that cannot determine the outcome of this appeal. Article 28 of the Judgments Regulation addresses the mischief of related actions proceeding in different courts with the risk of inconsistent judgments. It is plain in my view (1) that the actions between Mr Benatti and the various WPP companies are all related actions; (2) that the English court is the court first seised within the meaning of Art.28(2) ; (3) that the English court has jurisdiction over the subject matter of the action between WPP 2005 Ltd and Mr Benatti; and (4) that English law permits the consolidation of that action with the actions by WPP Italy and BSH. However, the English court has no power on those grounds to retain jurisdiction over the action against WPP 2005 Ltd if, as I conclude, the Verona court is the court first seised of that action. Under the Regulation, it is a matter for the decision of the Verona court whether it should decline jurisdiction in those circumstances.” [68-71]